Same-sex couples celebrated a historic victory recently with the legalization of same-sex marriages throughout the United States. That victory follows a decades-long struggle for equality by the LGBTQ community and their supporters. While the recent victory certainly helps same-sex couples protect and provide for each other, careful estate planning continues to play an important role. If you are part of a same-sex couple, there are a number of LGBTQ estate planning tools and strategies that you may wish to incorporate into your estate plan.
The Right to Marry
As part of a same-sex couple, you undoubtedly know all about the struggle for equality. Until recently, laws across the country banned same-sex couples from marrying and refused to recognize same-sex marriages performed in states or countries where it was legal to marry. Furthermore, most state and federal benefits refused to recognize a same-sex marriage, meaning same-sex spouse’s did not enjoy benefits their opposite-sex counterparts did. One of the most important LGBTQ battles was finally won in 2015. That year, in Obergefell v. Hodges the Supreme Court of the United States finally declared that marriage was a fundamental right, meaning that states must allow a same-sex couple to marry and must recognize same-sex marriages from other states.
The Confusion Following Obergefell
Without question, the victory in Obergefell will go down in history as a turning point for LGBTQ rights; however, it did create short-term confusion for some same-sex couples that can be rectified through careful estate planning. Prior to the Supreme Court decision, some same-sex couples who were married in a state that recognized their marriage subsequently moved to a state that did not recognize same-sex marriage, and then separated. Because they were now living in a state that did not recognize same-sex marriage, they never bothered to file for divorce. Now that the law requires all states to recognize same-sex marriage, they are still legally married in every state — and may not even realize it. Another potential source of confusion occurs when a same-sex couple registered in a state that only offered an alternative to same-sex marriage, such as a civil union. After the Obergefell decision, some states automatically converted civil unions, domestic partnerships, and other alternatives to legal marriages. Once again, this has created a situation where a same-sex couple could be unaware of the fact that they are legally married.
The rights and benefits conferred on a legal spouse could now belong to someone with whom you ended a relationship. Fortunately, estate planning tools and strategies can be used to ensure that the confusion following Obergefell does not result in problems for you or your estate down the road.
LGBTQ Estate Planning in the Wake of Obergefell
For same-sex couples, the need for a comprehensive and cohesive estate plan remains strong for several reasons. If your family has not yet accepted your same-sex marriage or relationship, for example, your spouse/partner could be shut out of the decision-making process entirely in the event of your incapacity or death. Moreover, a costly and painful legal battle could ensue, causing irreparable harm to everyone involved. Fortunately, both the emotional and monetary cost of litigation can be avoided by making it clear in your estate plan who you wish to inherit from your estate, who you wish to administer your estate, and who you wish to make decisions for you in the event someone must do so.
In addition, the ability to legally marry doesn’t always resolve issues related to your minor children. Your spouse may still need to adopt your children for him/her to have automatically recognized legal rights to them. Making it clear in your estate plan that you wish your spouse/partner to have rights to your children can also prevent problems in the event something happens to you.
Contact LGBTQ Estate Planning Attorneys
Please download our FREE estate planning checklist. If you have additional questions or concerns regarding the ongoing need for LGBTQ estate planning, contact us at the Northern California Center for Estate Planning & Elder Law today by calling (916)-437-3500 or by filling out our online contact form.